99c iTunes song auction bids top $100,000

Test case opportunities a-plenty

By Tony Smith, 4th September 2003

Magic Quadrant for Enterprise Backup/Recovery

Update Does the owner of a legitimately bought and downloaded music track have the right to sell his or her copy? That's a question one George Hotelling wants answered and has put a track bought off Apple's iTunes Music Store up for auction on eBay to find out.

One thing is for certain: the Electronic Frontier Foundation (EFF) is going to be a whole lot wealthier when the auction ends on 9 September. Hotelling has promised to donate his profits to the NGO. He paid 99 cents for the song - bidding has already reached well in excess of $100,000.

Update Since we posted this story, the leading bidder reconsidered his or her rash offer, and withdrew from the auction. Bidding is now at $16,600. You can buy four Power Mac G5s for that.

It's certainly an interesting case. Buy a CD and you can sell it to on perfectly legally, provided you keep no copy. You do not need to seek the permission of the copyright owner, if there is one.

But is that the case with a downloaded track? Not all music services are the same. BuyMusic, for example, a Windows-only alternative to the Apple store, doesn't sell you music - it simply grants you a right to listen to it. Its Ts&Cs read like a software licence, in which you buy the right to use the code, not ownership of it.

Apple's service, by contrast, does appear to be in the business of selling product rather than usage rights, and that, just like a CD, by downloading one of its MPEG 4 audio tracks, you are purchasing that particular copy.

However, Apple's Ts&Cs do state that the buyer is purchasing the work for "personal, non-commercial" usage.

Of course, whoever buys the track may not be able to use it. Apple's DRM technology connects the downloaded song to a specific Mac, and the technology almost certainly hasn't been designed with such a change of ownership in mind. When the new buyer receives his (ridiculously expensive) song from Hotelling, iTunes will almost certainly refuse to play it.

Can the buyer then sue Apple for preventing him or her from using their legally acquired song? One interesting legal challenge prompts another. And a third: to what extent is the new owner bound by Apple's Ts&Cs? ®